Pulupe v Mapiria [2019] PGNC 275; N8037 (7 October 2019)

N8037

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1156 OF 2018

BETWEEN:

ANDREW PULUPE, DICKSON ANGO, TAYALI TOKAI, TANDAKO TINDINI, AND LIBE PEPEREJA as Representatives
of HAYAPA CLAN, KIRU CLAN, PAKO CLAN, PIMBI
CLAN and TAYAKA CLAN the customary landowners of
KOBALU CAMPSITE, Hayapuga Local Level
Government, Tari, Hela Province
First Plaintiffs

AND:
ELAPE, PANGATA KUAI, CR. HENGEBE MALINGI, AKO PALIYA, TIKI BAYABE and SINAI ROBERT as representatives of AGANA Clan, LEREPE TAKIPE CLAN, TAMBURUMA TUBELI CLAN, AKIAPU CLAN, PANGOBI CLAN, ANGARERE CLAN, the Customary Landowners of LIRU CREEK to HIWANDA VILLAGE, Buffer Zone Area of Hides PDL1 Area, Hayapuga Local Level Government, Tari, Hela Province
Second Plaintiffs

AND:
HONGAI PALIYA, HEBERT HONGAI, VINCENT TAI and HIMUBE KAYABE as representatives of Pende Clan, Paibu Clan, Tumbu Clan the customary Landowners of Kobalu to Liru Creek Buffer Zone Area of Hides PDL1 Area, Hayapuga Local Level Government, Tari, Hela Province
Third Plaintiffs

AND:
HENGEBE BARIAGUA, TATABE WARAYA, ANDAWI TAMBO and DAVID AGIBE as representatives of TIKUA CLAN, TAKIMA CLAN, JUMU CLAN and TUNGUBE CLAN, the Customary Landowners of Manape Village to Jumu Tangimu Village Bufer Zone Area of Hides PDL1 Area, Hayapuga Local Level Government, Tari, Hela Province
Fourth Plaintiffs
AND:
LEMSON MAPIRIA as the Chairman of
Hides Special Purpose Authority
First Defendant

AND:
HIDES LLG SPECIAL PURPOSE AUTHORITY
Second Defendant

Waigani: Dingake J
2019: 14 February & 14 March, 7 October

Cases Cited:

Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638

Counsel:

Mr. D Kop, for Plaintiff
Mr A Serowa, for Defendant
Mr. H Babe, for Interested Party

7^th October, 2019

1. DINGAKE J: This is an application for summary judgment made pursuant to Order 12, Rule 38 of the National Court Rules.

2. The applicant prays that summary judgment for K200 000.00 be entered for the applicants.

3. The application is opposed by the respondents and the balance of the plaintiffs. The balance of the plaintiff’s successfully applied for joinder after the applicant commenced these proceedings.

4. The applicants, who allege to be landowners, aver that they are entitled to K200 000.00 as part of the landowner benefits due to the beneficiaries of Petroleum Development Licence No. 1 (PDL1) from Hides 4, Tari, Hela Province, pursuant to Licence Based Benefits Sharing Agreement (LBBSA).

5. The applicants say that in terms of the aforesaid Agreement they were entitled to receive 1% share which equates to the sum of K200 000.00.

6. The defendants and the balance of the plaintiffs aver that contrary to the applicants’ averment that the K200 000.00 accrues to them alone, in terms of the Agreement aforesaid, the 1% was to be shared amongst the Kobalu Beneficiary Group which comprise of clans starting from (1) Kobalu Foward Camp; (2) to those clans that resides along the road from Kobalu Camp to Liru Creek; (3) then from Liru Creek along the Tagari River to Telabo village; (4) from Liru Creek along the road to Hiwanda village; and (5) from Maneba village and across Jumu mountain to Tagimu village.

7. The law on Summary Judgment is authoritatively set out in the case of Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 at page 117, where the Supreme Court held that two elements must be satisfied before summary judgment is entered. These are:

1. There must be evidence proving the essential elements of the claim; and
2. That the plaintiff or some responsible persons give evidence that in his belief the defendant’s Defence cannot be sustained.
   

8. In this case there is no evidence that establishes that the K200,000.00 claims accrue exclusively to the first plaintiffs to the exclusion of the second to the fourth plaintiffs.

9. During the course of argument the parties hereto also referred me to (Annexure “A”) to Document No. 23, being the affidavit of Andrew Pulipe, which seems to suggest at page 2 thereof that there are seven (7) clans entitled to share the 1% from Kobalu Sub region.

10. I have perused the Writ of Summons and Statement of Claim and the Notice of Motion filed on the 18^th of December, 2018. The Writ of Summons and Statement of Claim mentions five (5) clans and the notice of motion mentions three (3) clans.

11. I have also established that the names of the clans appearing in the notice of motion filed on the 18^th of December, 2018, are not exactly the same ones as those appearing in Document No. 23, referred to earlier. For instance, whilst the notice of motion of the 18^th of December reflects “Hayape Clan”, Document No. 23, reflects “”Hayaba” similarly “Takaya Clan” in the notice of motion is reflected as “Tagaya” in Document No.
23. It is not clear to me whether, “Takaya Clan” in the notice of motion is “Tagaya” in Document No. 23.

12. Given the discrepancy alluded to above, I am not satisfied that there is cogent and credible evidence that prove the essential elements of the claim.

13. Summary judgment is an extraordinary remedy that closes the door in final fashion against the other parties against whom it is granted. It must only be granted in the clearest of cases. This is not such a case.

14. On the basis of the evidence placed before me, this is a matter which, failing settlement by the parties, may be best resolved by a trial.

15. In the result:

15.1 Summary judgment sought in the amount of K200,000.00 is refused with costs.

___________________________________________________________

Daniel Kop Lawyers: Lawyers for the Plaintiffs
Jema Lawyers: Lawyers for the Defendants
Tabe Jugari Lawyers for Interested party